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Leeks v. State

Supreme Court of Georgia

February 19, 2018


          Peterson, Justice.

         David Leeks appeals his convictions for malice murder and other charges stemming from the robbery and fatal shooting of a Fulton County convenience store clerk, Zerit Haileslasie.[1] Leeks argues that his convictions should be reversed because the trial court committed plain error in charging the jury (1) on the concept of party to a crime and (2) that the jury may consider an identification witness's level of certainty in assessing the reliability of the identification. We conclude that the trial court committed no error in charging the jury on party to a crime and that the trial court's error in charging the jury on how to consider an identification witness's testimony did not affect the outcome of the trial, and we affirm Leek's convictions.

         Taken in the light most favorable to the verdict, the evidence presented at trial showed that Leeks's mother and co-indictee, Regina Roberts, did various chores for the owner of the convenience store and was permitted to stay in a small storage room on the property. Another co-indictee, Ricky Moore, worked at the store cleaning and stocking shelves. On the day of the shooting, Leeks separately met up with Roberts and Moore in the store parking lot; Leeks asked Roberts how many people would be in the store, and she told him there would be two. Leeks came into the store that night and argued with Haileslasie, who told Leeks he could not loiter inside the store.

         Leeks then entered the booth where Haileslasie was working and fatally shot Haileslasie. Roberts and Moore entered the booth; Haileslasie was slumped over a chair and Leeks was gathering money. Roberts and Leeks fled in the same direction. Moore was standing outside the store when police arrived.

         Police initially suspected that a man named Octavia Smith was the shooter, as at least one officer thought that a person seen on store surveillance video looked like Smith. Police showed a lineup with Smith's photo to two store patrons, Mildred Stephens and Bryan Howse, as well as Moore, and both Howse and Moore picked out Smith.[2] But Smith was in the Fulton County jail on the night of the shooting.

         Stephens and Howse identified Leeks in subsequent photo lineups and in court as the man they saw in the store. Specifically, Stephens said Leeks came into the store and sat next to her while she played a game. She testified that she had an opportunity to see Leeks's face because the store was well lit, he sat close to her, and she turned to greet him. She said Leeks argued with Haileslasie, then went around her and into the booth, at which point she heard "pow-pow" twice and ducked behind a rack of potato chips. Howse said he saw Leeks come into the store, heard Leeks arguing with Haileslasie, followed by gunshots, and then saw Leeks leave the store. Howse testified that he had an opportunity to look at Leeks and that the store lighting was bright.

         Roberts was evasive when questioned by police but suggested to police that her son was the shooter. At trial, Roberts testified that she did not see the shooting but saw Leeks in the booth after Haileslasie was shot, picking up money. Cell phone tower data indicated that the phone Leeks had when he was arrested was in the area of the store at the time of the shooting, then traveled toward his home in Adairsville.

         The defense strategy at trial was to call into question the identity of the shooter. Leeks, who told police he was home sick on the night of the murder, did not testify at trial. But the defense pointed out that Moore and a police officer picked out Smith as the shooter, and Howse initially pointed to Smith's picture, as well. The defense argued that Stephens's and Howse's identifications of Leeks were tainted because the witnesses first were shown a picture of Smith, who looks like Leeks. The defense contended that Roberts lied in implicating her son in the crime in order to avoid a lengthier prison sentence.

         1. Although Leeks does not challenge the sufficiency of the evidence, it is our customary practice in murder cases to review the record independently to determine whether the evidence was legally sufficient. Having done so, we conclude that the evidence was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that Leeks was guilty of the crimes for which he was convicted. See Jackson v. Virginia, 443 U.S. 307, 319 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979).

         2. Leeks argues that the trial court erred by charging the jury on the concept of party to a crime, improperly permitting the jury to convict him of murder in a manner that was neither charged in the indictment nor relied upon by the State as its theory of the case at trial. The trial court did not err in this regard.

The trial court charged the jury as follows:
Any party to a crime who did not directly commit the crime may be indicted, tried, convicted, and punished for commission of the crime upon proof that the crime was committed and that the person was a party to it, even though the person alleged to have directly committed the crime has not been prosecuted or convicted, has been convicted of a different crime or degree of crime, is not amenable to justice, or has been acquitted.

         Leeks argues that the trial court impermissibly expanded the allegations in the indictment by instructing the jury on party to a crime. But we have held repeatedly - and reiterated recently - that an indictment need not charge a defendant under a party to a crime theory in order for the defendant's culpability to be proven in that manner. See Lebis v. State, ___Ga.__, __(II) (B) n. 3 (__ S.E.2d ___) (No. S17A0948, decided Dec. 11, 2017); Butler v. State, 273 Ga. 380, 384 (9) (541 S.E.2d 653) (2001); State v. Johnson, 269 Ga. 370, 372 (3) (499 S.E.2d 56) (1998). The trial court did not impermissibly expand the theory of liability contained in the indictment.

         Leeks also argues that the instruction was improper because the State did not rely upon a party to a crime theory in presenting its case to the jury. It is true that the defense was one of mistaken identity, and the State maintained that Leeks was the shooter.[3] But Leeks cites no authority for the notion that a trial court may instruct on only the particular theories of liability on which the prosecution relied at trial. Indeed, trial courts regularly instruct on lesser included offenses and may do so without either party requesting such an instruction. See State v. Stonaker, 236 Ga. 1, 2 (222 S.E.2d 354) (1976). "A trial court is authorized to give a requested ...

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